John V. Garaffa

About

A Partner at Butler, John V. Garaffa practices in our Construction, Coverage Defense, and Cyber Losses departments. He has extensive experience with construction defect litigation and cyber coverage and defense.

John has written widely on first-party bad faith, punitive damages, discovery disputes, and on the application of state valued policy laws to property losses in Florida and other Gulf Coast states. He has also served as the Vice Chair of the Property Insurance Law General Committee within the Tort Trial & Insurance Practice Section of the American Bar Association.

John received his Doctor of Jurisprudence from the University of Minnesota, cum laude, in 1982 and his Master of Laws degree, with distinction, from Georgetown University in 1991. Prior to joining the firm in 2003, John served on active duty for twenty-one years as a member of the Judge Advocate Generals Corps, United States Navy, retiring as a Captain.

Admissions

Florida

Minnesota

Education

University of Wisconsin Bachelor of Business Administration

University of Minnesota, College of Law Doctor of Jurisprudence

Georgetown University, College of Law Master of Laws

Memberships

Defense Research Institute (DRI)

Property and Liability Research Bureau

Courts

Florida Courts (Northern, Middle and Southern Districts)

Florida State Courts

Minnesota State Courts

United States Court of Appeals for Veterans Claims

United States Eleventh Circuit Court of Appeals

Experience

Publications

LexisNexis Practice Guide: Florida Insurance Litigation provides the practitioner with immediate access to knowledge and strategy on every aspect of insurance practice in Florida. The publication concisely presents the terms, conditions and exclusions that govern coverage offered against the risks under each line of insurance. This approach provides a comprehensive exploration of key concepts, policy language and insight for litigation of common and esoteric disputes under those policies. Each chapter also provides task-oriented checklists, examples, strategic points, and cross-references to governing statutory and case law.

Given the extreme weather that is affecting most of the country and the El Nin˜o that is expected in 2016, the issues in these cases, as well as other property insurance issues, are likely to arise in different contexts in numerous jurisdictions going forward. This article has cases on a broad range of property insurance disputes across the country.

The history of the pollution exclusion clause in its early forms demonstrates that its purpose was to serve as a broad exclusion for traditional environmentally related damages. The terms of the absolute pollution exclusion suggest that its reach extends well beyond those losses. However, some state and federal courts have cited the early history of the exclusion to narrow its application to traditional environmental pollution. This article notes the impact those disparate views have on coverage for damage due to "contaminants.

Business interruption insurance is a class of coverage that is intended to protect the business owner from potential income loss that can flow from damage to insured property. Such property can be directly insured or, in the case of "dependent property," can be the property of others that have a direct connection to the business of the insured. In addition, business interruption coverage can protect against damage to the property of key suppliers or customers that, in turn, has a detrimental effect on the insured's business. "Extra expense" coverage is a subset of business interruption coverage. It protects the insured against increased expenses that can arise out of the insured's efforts to return to business after an interruption in operations caused by a covered property loss. These expenses can include costs that are incurred to retain personnel who might otherwise be lost during an interruption, speed the recovery of the business, or maintain operations in a different way, while critical property is repaired or replaced.

September 01, 2013PUBLICATIONMind the Gap: Weathering the Statutory Notification Process When a Data Breach Occurs

Even before Edward Snowden and the NSA entered into the public conversation, data breach concerns abounded. For instance, a recent study conducted by the Ponemon Institute surveyed 4,774 IT and IT security professionals from nine countries- U.S., UK, France, Germany, Japan, China, India, Australia, and Brazil - and revealed that 60 percent of companies had a network security breach in the last year and 34 percent of those companies experienced more than one breach.

February 23, 2012PUBLICATIONBullock v. Philip Morris USA, Inc.: Where ‘Reprehensibility' As An Exception To Constitutional Protections And the Ratio Guidepost Includes The Wealth Of The Defendant

On November 30, 2011, the California Supreme Court exercised its discretion and let stand a $13.8 million punitive damage award that was more than 16 times the compensatory damages awarded by the jury. The case, Bullock v. Philip Morris, 1 (Bullock) involved a smoker diagnosed with lung cancer who filed suit against the cigarette manufacturer, seeking damages based on products liability, fraud, and other theories.

Then addressing a claim for indemnity for the loss or damage to property, counsel will need to determine whether the claimant is a person or entity whose loss is covered under the terms and conditions of the policy at issue. In a first-party property insurance matter, the issue of whether a claimant has standing to assert a right to benefits...

Litigation concerning benefits for business interruption is seldom an exciting spectator sport. However, Safeguard Storage Properties LLC v. Donahue Favret Contractors, Inc., an ongoing case in the civil district court in New Orleans, has the potential to put Louisiana jurisprudence at the center of the legal map.

July 30, 2009PUBLICATIONWrit Of Certiorari Dismissed As Improvidently Granted -- The Ambiguous End To Philip Morris USA, Inc. v. Williams

On March 31, 2009, the United States Supreme Court dismissed, as improvidently granted, a writ of certiorari in Philip Morris USA, Inc. v. Williams. While the reason for the court's action remains a mystery, it seemed to signal an end to the court's interest in the central constitutional issue in the case: punitive damages. Unfortunately, the court's decision to abandon the issue leaves both the litigants and observers wondering what, if anything, had been gained by years of decisions, reversals and remands.

July 15, 2008PUBLICATIONExxon Shipping Co. v. Baker: Sailing Into The Confluence Of Common Law And Constitutional Standards For Punitive Damages

On June 25, 2008, the United States Supreme Court issued its much anticipated opinion in Exxon Shipping Co. v. Baker. The Supreme Court reduced the punitive damage award from $2.5 billion dollars to $507 million dollars, an amount approximately equal to the jury's award of compensatory damages. While the decision certainly warmed the hearts of Exxon's previously discomfitted stockholders, the Court's opinion provides only limited encouragement to defendants involved in the current punitive damage lottery.

August 01, 2007PUBLICATIONEthics: Concerns About Lawyer Competency in The Brave New World of Electronic Discovery

As one court has characterized it, "a ‘certificate of admission to the bar' is a pilot's license which authorizes its possessor to assume full control of the important affairs of others and to guide and safeguard them when, without such assistance, they would be helpless." In re Discipline of Laprath, 670 N.W.2d 41 (S.D. 2003). While the freedom suggested by that imagery might be a bit overstated, the assertion that the qualifications of a counsel assuming responsibility for a case are critical to the potential outcome is not.

On February 20, 2007, the United States Supreme Court issued its much-anticipated second opinion in the negligence and fraud suit brought by the widow of Jesse Williams against Philip Morris. Mrs. Williams had asserted that the company had purposefully taken actions to obscure the dangers of smoking and, as a result, her husband was deceived into believing smoking was not harmful, a 47 year delusion that ultimately led to his illness and death.

September 19, 2006PUBLICATIONRemanded in Light of State Farm v. Campbell: The Opportunity For Further Illumination Presented by Williams v. Philip Morris Inc.

On May 30, 2006, the U.S. Supreme Court again granted a petition for writ of certiorari in the ongoing dispute between Philip Morris and the widow of Jesse Williams, an Oregon resident who died of lung cancer after smoking cigarettes for about 47 years.

April 01, 2006PUBLICATIONThe Uncertain Scope of "Hurricane Damage" Under State Valued Policy Laws

The 2004 and 2005 hurricane seasons in the Gulf Coast region have highlighted a number of issues that go to the heart of things both personal and governmental. The social and psychological devastation wrought by windstorms like Hurricanes Ivan, Katrina, and Rita continue to shape the way the public perceives the region and its public officials. Somewhat less appreciated is the impact that those storms have had upon more prosaic issues like insurance and the value of taxable property that ultimately have broad economic effects on the region as a whole

July 01, 2005PUBLICATIONFlorida's "Valued Policy" Law - The Eye of the Storm

Hurricanes Charley, Frances, Ivan, and Jeanne have once again brought Florida insurance law under the microscope. In the midst of this examination is Florida's valued policy law. For most insureds and their attorneys, there is an expectation that insurance will be available to return the insured's property to its pre-storm condition. Unfortunately, even for professionals, there are common misconceptions about the interplay of contract and law in this area. One such common misconception is the proper application of Florida's valued policy law.

January 18, 2005PUBLICATIONPiece Of Mind: The Utah Supreme Court's Response To Campbell

Given that the Utah Supreme Court (“Utah”) previously reinstated a $145 million punitive damages award in favor of the Campbells, it is not surprising that on remand from the U.S. Supreme Court, this same state high court goes to great lengths to justify the largest punitive damages award it believes could possibly survive further constitutional review.

In Liggett Group Inc. v. Engle, the Florida's Third District Court of Appeal reversed the largest punitive damage award in history. The circumstances of the award indicate it would have bankrupted the defendants and was, in essence, a civil death sentence. If that were the only error, Engle would merely mark another notch in the continued upward spiral of American jury awards. However, the compounded procedural and constitutional errors in Engle make it particularly useful for those who wish to examine the pros and cons of the current system of punitive damages.

It has long been accepted that parties to an insurance contract have an obligation to deal with each other fairly and in good faith. As early as 1914, this obligation was found to be grounded within an implied covenant within the contract between the insurer and its insured. If a denial of benefits under the policy was ultimately resolved by a suit on the contract of insurance, a policyholder who prevailed would receive the amount due plus interest. The recognition of a cause of action for the tortious breach of the duty of good faith and fair dealing in the context of the first-party contract of insurance is relatively recent.

In the wake of Superstorm Sandy, hundreds of lawsuits have been filed in state and federal courts in New York and New Jersey. These courts are trying to manage their dockets in ever more efficient ways. As the two year anniversary of the storm approached, more and more suits were filed. These suits address numerous issues, including application of flood sub-limits to coverages other than actual property damage, such as debris removal and time element.

Blog Posts

The number of claims arising from a significant wind event such as Hurricane Irma can create intense time pressure on insurers and their adjusters. The insurer must promptly acknowledge each claim and make prompt inspection. Given the anticipated number of claims, the adjusters need to make that inspection as thorough as possible. Our experience has taught us that the following steps increase the effectiveness of the inspection and make it more likely that the insurer’s decision on the claim will be fully informed. This is not an exhaustive list. Each loss and claim is unique and must be evaluated on its own facts and merits.

This weekend Hurricane Irma, a Category 5 Hurricane, is expected to subject South Florida to potentially catastrophic wind, rain and storm surge and then move north along the Atlantic coast of the United States. Irma is the strongest storm ever recorded in the Atlantic, outside the Gulf of Mexico or Caribbean. It has also set a record for the amount of wind energy recorded over a 24-hour period. If Irma strikes South Florida, it could deliver the first widespread damage to the region since Hurricane Wilma in 2005.

July 13, 2017BLOG POSTRansomware is taking the world by storm; does insurance respond?

Although ransomware attacks have existed for some time, they have recently increased in scope and severity. There will be more in the future. Unfortunately, companies around the world have suffered significant losses from these attacks. If a company submits its losses to an insurance carrier, one has to carefully study and analyze the types of policies the company has purchased, and the policies’ coverage terms, conditions, and exclusions in light of the facts.

On January 5, 2017, the United States Court of Appeals for Veterans Claims rejected the assertion by the Veteran’s Administration (VA) and the Board of Veterans Appeals (the Board) that a service member who requested a discharge in Lieu of Court Martial after an unauthorized absence of 42 days was barred from seeking veteran’s benefits for an injury he had suffered on active duty.

October 28, 2015BLOG POSTWhen Revenge Is Not So "Sweet": The Wages of "Revenge Porn" under Florida's New Cyber Harassment Statute

Policyholders who seek coverage for the monetary consequences of a violation of the statute under the “personal and advertising injury” or general liability coverage in their insurance’ policies are likely to find themselves looking elsewhere for funds.

September 26, 2014BLOG POSTWhen It Comes to Sinkholes, Contracts, Statutes and Regulations Do Matter

On August 21, 2014, the United States Court of Appeals for the Eleventh Circuit vacated the decision of the U.S. District Court for the Middle District of Florida in Shelton v. Liberty Mutual, Case number 13-15371 / D.C. Docket No. 8:12-cv-02064-JSM-AEP. This decision confirms that the statutory definitions for structural damage under the May 17, 2011 amendments to the Florida sinkhole statutes apply to property policies issued after those amendments were enacted. The court’s order reversed the positions taken by the District Court that seemed bent on plotting a new course for Florida jurisprudence.

Effective July 1, 2014, Florida enacted what some have described as one of the country’s most detailed and comprehensive statutes governing the duties of commercial entities that acquire, maintain, store, or use personal information, including potential penalties related to the loss of such data. Rather than simply amending the previous provision, Florida Statute 817.5681, the Florida Legislature repealed the previous statute and replaced it with Florida Statute 501.171, entitled the “Florida Information Protection Act of 2014.” The new statute governs the storage and disposal of private information and sets out specific requirements in the event of the loss of such data, whether through inadvertence or through a “breach” of data storage systems.

Events

John Garaffa from Butler Weihmuller Katz Craig along with co-presenter Rabih Hamadi presented in Orlando, FL at the ABA Spring Meeting on the topic of "Whose Money is it? Recognizing Insurable Interest, Lienholders, and Others" on April 7, 2017.

John V. Garaffa from Butler Weihmuller Katz Craig along with Mathew Scott and Hillard M. Sterling, were panelists in Uncasville, CT at the 6th Annual Cyber Liabilities Insurance ExecuSummit on the topic of "After the Breach: Response and Subrogation Strategy" on March 21, 2017.

Rimkus is hosting a 2-day seminar of Florida Continuing Education accredited courses for up to 12 hours of credit units. Day 1 will consist of six one hour courses on varied pertinent topics. Day 2 will be dedicated to a Legislative and Property Case Law Update, as well as the new 5hr Law & Ethics CE required course.

News

Every year, we are excited to sponsor the Hillsborough County Bar Association’s Annual Diversity Networking Social. This HCBA Tampa Bay event allows us to meet up-and-coming law students and new lawyers with diverse backgrounds.

May 02, 2016NEWSJohn Garaffa Authors a Chapter in Latest Edition of "The Comprehensive Guide to Economic Damages"

Now in its fourth edition, The Comprehensive Guide to Economic damages includes a chapter authored by Butler's own John Garaffa. The guide serves as a deep resource for financial experts and attorneys seeking guidance on damage calculations. A digital download of the publication is available here, and physical copies will be released later in May.

John V. Garaffa recently authored “When the Policy Follows the Property: The Challenges Posed by Mortgagee Rights” published in the New Appleman on Insurance’s Current Critical Issues in Insurance Law Fall 2015. Published by LexisNexis, Appleman on Insurance has long been considered a comprehensive resource in the field of insurance law. It is showcased by LexisNexis as an “authoritative analyses of insurance law across the nation with insights provided by expert practitioners and scholars . . . .”